Citation Nr: 9836563
Decision Date: 12/15/98 Archive Date: 12/30/98
DOCKET NO. 97-30 720 ) DATE
)
)
On appeal from the
Department of Veterans Affairs Regional Office in St.
Petersburg, Florida
THE ISSUE
Entitlement to nonservice-connected pension.
REPRESENTATION
Appellant represented by: Veterans of Foreign Wars of
the United States
ATTORNEY FOR THE BOARD
C. Crowley, Associate Counsel
INTRODUCTION
The veteran served on active duty from August 1954 to August
1958.
This appeal arises before the Board of Veterans' Appeals
(Board) from a June 1997 rating decision of the St.
Petersburg, Florida, Regional Office (RO) of the Department
of Veteranís Affairs (VA), which denied entitlement to
nonservice-connected pension benefits based on permanent and
total disability for pension purposes.
A review of the record shows that the veteran indicates that
he has leg and foot disorders that he claims are a product of
his active service. As no action has been taken on the
veteranís claim, this matter is referred to the RO for the
appropriate action.
REMAND
The veteran contends, essentially, that his disabilities are
productive of such impairment as to warrant the assignment of
a permanent and total disability rating for pension purposes,
to include on an extraschedular basis under the provisions of
38 C.F.R. ß 3.321(b)(2) (1998). He specifically contends
that he has a depressive disorder, a pulmonary disorder,
hearing and visual impairment, a back disorder, as well as
shoulder and knee disorders which render him unemployable.
After a review of the record, it is the opinion of the Board
that additional development of the evidence is necessary. In
particular, the Board notes that May 1997 medical examination
reports did not consider whether the evaluated disorders
impacted the veteranís ability to obtain or retain
employment. Further, the veteran has indicated that he has
various disorders which have not been evaluated or considered
in determining whether he is able to obtain or retain
employment. The Board believes that special VA medical
examinations would be of significant probative value in
determining whether a permanent and total disability rating
for pension purposes is warranted.
In addition, the veteran indicated that he had been treated
by a VA medical facility in Orlando, Florida. Our review of
the claims folder shows that although these records have been
requested, they do not seem to be associated with the
veteranís claims file.
This claim is accordingly REMANDED for the following:
1. The RO should again request the
veteranís mental health treatment records
and any other records from the VA
facility in Orlando Florida, and
determine whether there are records
pertaining to the veteran that are
obtainable from that facility. The
result of that determination should be
associated with the veteranís claims
file.
2. The RO should schedule the veteran
for comprehensive VA medical examinations
by the appropriate specialists to
ascertain the severity of each of his
chronic disabilities. The claims file
and a copy of this remand must be
furnished to and be reviewed by each
examiner prior to the examinations. All
necessary tests should be conducted. The
following examinations should be
scheduled to determine the veteranís
ability to obtain or retain employment:
(a) a special eye examination to
determine the scope of the veteranís
visual impairment. The examiner
should include the veteranís best
corrected distance vision in the
examination report.
(b) a special VA ear or
audiological examination to
determine the level of the veteranís
hearing impairment. The examiner
should report the findings of the
controlled speech discrimination
test(s) together with the results of
the puretone audiometry test on the
examination report.
(c) a special VA mental disorders
examination to determine the scope
of any depressive disorder or other
mental impairment.
3. Following completion of the above,
the RO should review the veteranís
examination report(s) and ensure that all
of the development action has been
conducted and completed in full.
Specific attention is directed to the
adequacy of the examination(s), and to
verify the review of the claims file by
the examiner(s), and compliance with the
remand orders, as mandated by the Court
of Veteranís Appeals in Ardison v. Brown,
6 Vet. App. 405, 407 (1994), and Stegall
v. West, 11 Vet. App. 268 (1998).
4. The RO must then rate all of the
disorders identified in the medical
record(s) and then determine the combined
evaluations for all of the veteranís
disorders, appropriately grouped as
either service-connected or nonservice-
connected.
5. The RO should thereafter review the
veteranís claim and determine whether a
permanent and total disability
rating for pension purposes can now be
granted. In doing so, the RO should
apply both the ďaverage personĒ test
set forth in 38 U.S.C.A. ß 1502 (West
1991) and 38 C.F.R. ß 4.15 (1998), and
the ďunemployablilityĒ test set forth
in 38 C.F.R. ß 4.17 (1998). If such a
rating cannot be granted under either
standard, the RO should then consider
granting a permanent and total disability
rating on an extraschedular basis under
38 C.F.R. ß 3.321(b)(2) (1998).
If the decision still remains adverse to the veteran, he and
his representative should be provided with a supplemental
statement of the case, and with a reasonable period of time
within which to respond thereto. The case should then be
returned to the Board for further review, as warranted.
The purpose of this REMAND is to ensure compliance with due
process considerations and to obtain additional evidence. No
inference should be drawn regarding the final disposition of
this claim.
MARK W. GREENSTREET
Member, Board of Veterans' Appeals
Under 38 U.S.C.A. ß 7252 (West 1991), only a decision of the
Board of Veterans' Appeals is appealable to the United States
Court of Veterans Appeals. This remand is in the nature of a
preliminary order and does not constitute a decision of the
Board on the merits of your appeal. 38 C.F.R. ß 20.1100(b)
(1997).
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